Ineffective assistance of counsel in a civil court

I am involved in a civil matter with a civil attorney that clearly was ineffective in presenting my defense. We have just received a negative verdict from Commonwealth Court in Pennsylvania and have about two weeks to file either an appeal or motion for a new trial based on this ineffective assistance of counsel with hopes of being granted a new trial. However, I have found little if any research on ineffective counsel for a civil case, only criminal. Does such a defense or pleading exist in a civil matter? This is an important case with lives on the line here, so we have to file the correct pleading, but I sure could use some advice or information on this subject as counsel clearly did not challenge witness statements, was a personal injury attorney in a code violation case and failed to present a resolution that I had asked him several times to present to the courts, but did not.

Re: Ineffective assistance of counsel in a civil court

and failed to present a resolution that I had asked him several times to present to the courts, but did not.

Clients often believe (wrongly) that an attorney MUST do the things you listed. The rules of evidence apply and if there is no legal basis to enter it then the attorney cannot just do it because you want them to.

badd302:

a personal injury attorney in a code violation case

Why on earth didn't you hire a lawyer experienced in the matter you needed? This is on you for not doing that to start with.

All I can suggest is that you consult an attorney with experience in the area your case is in and pay them to appeal the verdict for you.

Re: Ineffective assistance of counsel in a civil court

I am involved in a civil matter with a civil attorney that clearly was ineffective in presenting my defense.

Clients often misunderstand how trials really work and what the lawyers can and cannot do. What, specifically, makes you think the representation was not competent?

badd302:

However, I have found little if any research on ineffective counsel for a civil case, only criminal. Does such a defense or pleading exist in a civil matter?

The Constitution gurantees competent counsel to criminal defendants because they are facing the state with all its resources and the penalties for losing are quite severe. The Constitution does not guarantee competent counsel in civil cases, and thus "ineffective assistance of counsel" is not a valid basis for an appeal in a civil case. That's why you've not found anything on that in your research.

Your remedy if the lawyer was not competent is to sue him for malpractice. In order to succeed, you must prove not only that the lawyer screwed up but also had the lawyer not screwed up the outcome of the trial would have been different.

badd302:

This is an important case with lives on the line here,...

In a code violation case, this sounds a bit melodramatic. What was the case about and how were "lives on the line" here?

badd302:

...and failed to present a resolution that I had asked him several times to present to the courts, but did not.

What you asked for might have been something that the applicable rules did not allow the lawyer to do. What resolution were you asking him to present? Note that in a typical code violation case, the only issue is whether the defendant violated the code. If so, the defendant is found in violation of the code, typically with a the result that the defendant is fined and if the violation is continuing, the defendant may be ordered to cure the violation. Generally speaking, the court doesn't have the power to impose other resolutions that you request. If you want something more creative, that's what settlement agreements are for.

Re: Ineffective assistance of counsel in a civil court

Thanks to all of you that responded. I apologize if I was not forthcoming with all the details and to the fella that said it was "melodramatic" well, maybe my explanation will answer all the questions here.

First, it is a Rottweiler rescue with 70 dogs, those are the lives that are at stake. Second, we did not hire the personal injury attorney, he donated pro bono, which, even if he screwed up, we would not think of suing him as we do appreciate his caring. But we cannot allow the decision from the Commonwealth Court stand as that would mean in 30 days, the lives of the dogs would then be in jeopardy as it would be impossible to place them with other rescues as they are full or adopt them out as many are older and some have health conditions which make them unlikely candidates for adoption. The next option would be putting them down as what else is left? We really are in serious situation here, that is why I really need the advice.

The code violation was for a variance enacted by the township. We tried to argue "pro existing non-conforming" but they claim she was no longer legal when she increased the number of dogs stipulated in her conditional use. And the thing is, we have been locked into whatever was stated or raised in the zoning board hearing, which at that time, was the first appearance of our personal injury attorney who knew little of zoning and ordinance law. Witnesses were not challenged, resolutions were not offered, many things were not brought up per instruction from the kennel owner or legally by the attorney. Appealing this decision would really not get us anywhere. That is why we were trying to try and get a new hearing, that way we CAN get all the things admitted and resolutions discussed, isntead of having to put down many dogs in 30 days or shortly thereafter unless we come up with something to give us a second shot at the courts.

Now that I have described our situation, I would hope that all of you would see the problem we have and the clock is ticking here to file something. We really need your help and would totally appreciate any information or guidance anyone could give us. Our rescue is online, so you can see we are legitimate.

Re: Ineffective assistance of counsel in a civil court

The code violation was for a variance enacted by the township. We tried to argue "pro existing non-conforming" but they claim she was no longer legal when she increased the number of dogs stipulated in her conditional use.

That would be accurate and is likely why you did lose even without the other evidence you wanted admitted. If the zoning laws changes the town does not have to grant a variance based on pre-existing or grandfathering. If there was a maximum number of animals that were approved for the rescue and they took in more than that then the town has a legal right and obligation to the citizens to ensure the zoning laws are complied with.

badd302:

we have been locked into whatever was stated or raised in the zoning board hearing, which at that time, was the first appearance of our personal injury attorney who knew little of zoning and ordinance law.

That also would be accurate. It is wonderful that the attorney donated his services but it still does not change the issue that you don't get a do over in a civil matter because it wasn't his legal expertise.

badd302:

Witnesses were not challenged, resolutions were not offered, many things were not brought up per instruction from the kennel owner or legally by the attorney.

As has been said in several responses, once it was in court it doesn't matter WHAT the kennel owner instructed. What matters is the rules of evidence. The attorney can't introduce evidence because the defendant "instructs," demands, or insists. They attorney is bound by law and court procedure.

badd302:

Appealing this decision would really not get us anywhere. That is why we were trying to try and get a new hearing, that way we CAN get all the things admitted and resolutions discussed, isntead of having to put down many dogs in 30 days or shortly thereafter unless we come up with something to give us a second shot at the courts.

Appealing is your avenue. You aren't going to get a new trial on the exact same issue. The town will move for dismissal based on the fact that the case has already been tried and a verdict rendered by the courts.

badd302:

Our rescue is online, so you can see we are legitimate.

Legitimate rescues don't take in 30-40 more dogs than they are authorized to care for. I am going to make an educated guess that this is someone who started out as a rescue, was approved for a specific number of animals, and now has more than double the number of dogs than what they were approved for. On top of that the town and animal rescue has likely raised the issue of possible hoarding.

I suggest you work VERY VERY hard to find homes for these animals and quickly. Contact local vets, use social media, involve local television if you have to. But if you are clinging to the hope that you can just get a whole new trial then you are condemning these animals to death because that isn't likely to happen.

Re: Ineffective assistance of counsel in a civil court

First, it is a Rottweiler rescue with 70 dogs, those are the lives that are at stake.

OK, that context helps a lot. In your original post, the phrase "lives are at stake" implied human lives, which would be unusual in a code violation matter. And while I sympathize with the plight of the dogs here, there is nevertheless a huge difference between human lives being at risk and the lives of dogs being at risk, both generallly and in the law. Under the law, dogs are for the most regarded as property, much like a car or TV set.

badd302:

We tried to argue "pro existing non-conforming" but they claim she was no longer legal when she increased the number of dogs stipulated in her conditional use.

I assume you mean "pre-existing nonconforming use," i.e. that the existence of the dog rescue operation predated the zoning or code ordinance that prohibited that activity somehow, perhaps by imposing a limit on the number animals that can be on the property. In short, it's an argument that the use was "grandfathered." I don't practice in PA, but perhaps an example of an actual case where I practice might shed some light on the difficulties that can come up with a pre-existing use argument.

A car wash business started in a residential neighborhood over 30 years ago, before a zoning ordinance was passed limiting properties in that area to single family residences only. Because the car wash was a "pre-existing nonconforming use" it was allowed to remain there. After 30 years, the owners decided to add additional services to the business. That resulted in additional noise in the neighborhood, ticking off nearby residents. They complained to the city, and the city declared the car wash business to be in violation of the code. The car wash argued that the additional services offered were part of the pre-existing use and thus there was no code violation. The court sided with the city and the business had to close entirely. Why? Because the pre-existing use is allowed only if the use of the property remains unchanged. Any significant change, even if it is related to the same use, kills the pre-existing use and results in a violation. What's difficult is that this means that not only were the expanded services banned, but the entire business was prohibited. By expanding the business beyond what it had been at the time the ordinance was passed, the owners killed the grandfather protection they had for the business. This is why when you have a grandfathered use, you need to understand the law in your area really well before you make any changes, including expansion, to the use of the property.

Thus, where I am, if you had a dog rescue operation that had 20 dogs at a time when an ordinance is passed making it a violation to have more than 4 dogs on the property, that rescue operation may benefit from grandfather protection. But if it then significantly expanded afterwards to having 70 dogs on the property, that would kill the grandfather protection and the owner would then be in violation of the Code. That would mean that the owner would have to remove at least 66 dogs from the property to conform to the Code.

badd302:

Appealing this decision would really not get us anywhere. That is why we were trying to try and get a new hearing, that way we CAN get all the things admitted and resolutions discussed, instead of having to put down many dogs in 30 days or shortly thereafter unless we come up with something to give us a second shot at the courts.

In general, you have to raise all your arguments and present all your evidence in that first trial. If you don't do that, you cannot raise the failure to do it as a reason for a new trial. The reason is obvious: if you could do that, parties would hold back on what they have in the first trial so that if they lose they can take a second shot. That's a waste of court resources. Typically you cannot attack the result in the first trial by bringing a new proceeding (known as a "collateral attack") but must instead deal with any problems in the trial by appeal. If you lack a basis for appeal, you may be stuck without any way to undo the ruling. That's unfortunate for the dogs, but it may be the reality here.

Because this turns very much on the details of your case and local law, all I can suggest is that you consult an attorney in your area who is familiar with code violation matters and see if anything can be done at this point. But if, as it sounds, the problem is that the owner of the property kept taking in ever increasing numbers of dogs after the code became effective, that may have killed the pre-existing use exception that the owner had and thus put the owner in violation, much like the car wash in my example above.

Re: Ineffective assistance of counsel in a civil court

I understand that the law regards animals as property. However, I am sorry that I feel your opinion of animals is basically the same and far lower than a life of a human as you made the distinction of your opinion and the laws opinion both being basically the same. I personally am sick of people and actually like animals more as they are nicer and definatly more loyal. I personally have three rescued animals and love them as family members. Definatly worth saving and not walking away saying basically, :sorry about their luck" and going on to the next case.

I do know it is a pre existing non conforming USE, I just thought you knew I knew that already and was just trying to give the underlying reasons for the ruling. The state of Pennsylvania is a bit different than the case you gave, as your car wash went directly to non conforming, whereas our rescue went to a conditional use with stipulations. These conditions were broken when she added more dogs, therefore making her existance illegal and removing or violating her conditional use, therefore making pre existing use no longer available as a defense. Had they not done it in that manner, or basically left the conditional use out, in PA same/similar businesses are allowed, like a kennel going to now being a rescue would have been accepted. And with the doctrine of natural expansion, she would have been allowed to have expanded. So, with PA law, your car wash would have been allowed to exist. AND we have protections from zoning that are not recognized under federal law of just compensation and that a pre existing no longer allowed would have been a per se taking of private property for which just compensation would have been paid. Your car wash would have been paid just compensation for his business. Different states, different laws.

And yes, I do know he is locked into what was originally challenged at the zoning board hearing, I believe I said that already. THAT is the problem as he didnt have enough time to bring his knowledge of zoning laws up to speed, therefore not arguing things he should have. But again, he is NOT a property law attorney. And no, we are not hiring a zoning attorney. An attorney already screwed this case up royally. Besides, we cannot afford it as it takes much money to feed and care for 70 large dogs, no extra money for an attorney. With all due respect to you, as I know you are an attorney, several cases that I know of personally have been lost by attorneys and then won by pro se individuals. A word to the wise out there, many of us pro se's are very intelligent and are worthy of being feared and taken seriously by counselors. I personally have beaten Pa Superlawyers, badly I might add. They took me seriously AFTER I wiped them out, but it was too late for them then.

I have already formulated a plan of attack on this case and along with my filing plus media support, adding the fact that this is an election year, we are going to put the facts to the court of all the fatal errors this attorney failed to do, errors that would certainly change the verdict of the case. Here in PA about two months ago, there was a rescued Husky that ate a 3 day old baby. Originally the courts ruled to put the dog down. But people from all over the country came forward and actually saved the dogs life, just public opinion and this dog did something horrible. (I was not one that came forward by the way, I bowed out of that one) But my point here is, if they can save a dog that did something as horrible as that, I certainly can save dogs that were abused themselves. We have a dog that was beaten by a 2x4 and left with neurological damage, to the extent that he marches in circles, but is a very sweet dog and far from harmful. Unfortunately, unadoptable, but should not be put to death. We already have media people in place working on that area to save this rescue. This attorney completely dropped the ball here, but like I said, we have no desire to sue him as the civil laws provide as we do appreciate his at least offering to help us. But this decision cannot be allowed to stand without us first even getting a shot at providing actual truth and defenses he failed to raise.

Re: Ineffective assistance of counsel in a civil court

I understand that the law regards animals as property. However, I am sorry that I feel your opinion of animals is basically the same and far lower than a life of a human as you made the distinction of your opinion and the laws opinion both being basically the same.

You fail to understand that the law is supposed to be emotionless. You can go into court and try to make all the emotional arguments you want but the court has a legal obligation to not hear it as it does not apply to the LAW. That is why emotional damages are rarely compensable.

badd302:

THAT is the problem as he didnt have enough time to bring his knowledge of zoning laws up to speed, therefore not arguing things he should have. But again, he is NOT a property law attorney.

Again, that does not automatically get you a whole new trial. That is on YOU for hiring him.

badd302:

our rescue went to a conditional use with stipulations. These conditions were broken when she added more dogs, therefore making her existance illegal and removing or violating her conditional use, therefore making pre existing use no longer available as a defense.

This is EXACTLY what TaxAgent said to you but you don't want to hear it. The minute she added more animals than the conditional use permit she broke the law and the city/state was no longer required to abide by them or grant further variances.

badd302:

Had they not done it in that manner, or basically left the conditional use out, in PA same/similar businesses are allowed, like a kennel going to now being a rescue would have been accepted.

They aren't legally required to do any of that.

badd302:

And with the doctrine of natural expansion, she would have been allowed to have expanded.

70 animals is WAY to many and I seriously doubt that any state would allow a kennel or rescue to expand to 70 full time large dogs.

badd302:

With all due respect to you, as I know you are an attorney, several cases that I know of personally have been lost by attorneys and then won by pro se individuals.

Let us know how it works out for you but I seriously doubt this will be the case this time. You may have had some success in the past but this one I fear is going to turn out much differently.

badd302:

We already have media people in place working on that area to save this rescue.

Re: Ineffective assistance of counsel in a civil court

It was in the Commonwealth Court of Pennsylvania that we just got the decision from. It originally started in Unity Township Zoning board, appealed to Westmoreland County Common Pleas Court, then off to Commonwealth of Pennsylvania. That is where we are at right now as the decision from Commonwealth just arrived at the end of June.

Re: Ineffective assistance of counsel in a civil court

It was in the Commonwealth Court of Pennsylvania that we just got the decision from. It originally started in Unity Township Zoning board, appealed to Westmoreland County Common Pleas Court, then off to Commonwealth of Pennsylvania. That is where we are at right now as the decision from Commonwealth just arrived at the end of June.

One option for you is to file a Motion for Reconsideration with the Commonwealth Court based on all that evidence that was left out at trial.

If that fails (as it likely will) your next option is the PA Supreme Court.

Unfortunately, it appears that you must first petition the Supreme Court to allow you to appeal.

Re: Ineffective assistance of counsel in a civil court

Folks, I do know all of the things most of you have said to me. I do know the challenge we are up against. But I am not walking away from this and having this wonderful rescue who does not only a service to their community by providing a food bank for animals, but all the rescued dogs that have come and been adopted out to wonderful homes that are now loved. I was hoping for a little more information instead of what I am feeling is all negative and without hope and basically picking everything I am saying apart. I have seen injustices in these courts, but I have also seen compassion and working out a problem with good results as well. That is what I am hoping for. And obviously, I could not possibly give all the details, which if I gave them like I did from the first response with further details, you all would be able to see more of our defense on this. And yes, we all agree 70 dogs is far too many, no arguement on that one. BUT we have good, viable solutions to this which we were never able to present as options here as putting all these dogs down certainly is not one of them.

1. witness statements were never challenged by our attorney. For example, a neighbor on one side stated she cleaned the kennels every one or two weeks. Between her property and this neighbor, there is a 10foot wooden fence, making it IMPOSSIBLE for him to even see into her property. The neighbor on the other side complained of the barking, but again our attorney never challenged the aspect that they are forever throwing firecrackers over the fence into the kennels of the dogs making them totally freak out. They antagonize the dogs by blowing horns at the beginning of her driveway. None of this was brought out.

2. One claimed of odors. Yet, this kennel has been in existance since 1983 with several inspections per year, yet were NEVER, again let me say that NEVER written up for unclean pens or odors. And for those of you that are not clear on how these inspectors operate, they just drop in on the kennels, unannounced, so if these pens were not clean, she would certainly have been written up during all these years of operation. She was fully licensed and insured. This is no fly by night operation. These are only a FEW of examples of things that should have been brought up or challenged. I have more.

3. with all due respect, I do not need any more negative comments, like you highly doubt we will win. We did not get a fair shot at defending the rescue due to this attorney failing to have adequate knowledge of code violations and all that goes with it and just the basics like discrediting witness which is Law 101. And I guess, if I took your attitude, just say, Oh well, sorry about our luck, shut the kennels down and kill the dogs. And for the millionth time, WE DID NOT HIRE THIS ATTORNEY. You make it sound like we sought out a personal injury attorney. This attorneys wife has her own rescue and offered his services, which we could not afford and were thankful for him. None of you even said any nice comment about us not even considering suing him....You folks just let that comment slide....Most people would be out for blood, first stop, malpractice towards the attorney. But not us. Do you folks have a clue what daily operations for a kennel the size of hers costs per day? This is a non profit and with money being tight everywhere, there was no money left in the budget to hire a lawyer. And we assumed, he WAS a lawyer, a lawyer whose wife had her own rescue, and would be competent so now we and these dogs should be penalized simply because he was not competent? No way.

And yes, I have had success in the past as for your information, I actually beat the DOJ pro se. How many people do you know have done that? But in that case, it too was an attorney that screwed it all up and I was the one that straightened it all out. I know everytime I go into a courtroom it is a crap shoot as to whether we win or not, especially since being pro se, we have to go way past the normal representation just to get the judges and attorneys to even give us the credit we deserve. Its just that I believe in what I am doing and all this education I have from a fine university here in Pittsburgh, has allowed me an opportunity to help people, when normally they would be unable to come up with the million dollars per hour an attorney wants and truly cares less about their homes they might be losing.

And as far as your comment about emotions, thank God I am not defending in THIS forum as I have found little if any compassion here within this forum and responders. But with that case I mentioned with that dog that mauled that 3 day old baby, people coming forward in his defense saved his life. THAT IS FACT and you should never minimize the power of public support. The court had already ruled to put the dog down. Public opinion changed the courts ruling. And I do not intend to base this purely on emotions. We have good solid legal grounds here of all the fatal errors. Put all these dogs to death simply because we had a bad lawyer? You have certainly gotten cold over the years, lost your faith, whatever you wish to deem it as you already have us losing the case and just disposing of these animals with no thought. I am not saying that to be mean, but you really should step back and see if all this negativity which these courts are full of, has not gotten to you. If we did that, we would be as bad as the abusers. Maybe you need a rescued dog.They are wonderful and I feel they are thankful for you adopting them and giving them a good home. They are a blessing to many families.

I came to this website for pointers, advice or suggestions and I have gotten negative comments, and little if any hope. Again, I do realize the mountain we are up against but I am a very good writer, a compelling writer and I always seem to have faith that somewhere justice will prevail here and a solution, which we plan to introduce, will be the ending result. One that keeps the rescue alive and works for the surrouding neighbors, all of which own dogs themselves.

Re: Ineffective assistance of counsel in a civil court

And yes, I have had success in the past as for your information, I actually beat the DOJ pro se. How many people do you know have done that? But in that case, it too was an attorney that screwed it all up and I was the one that straightened it all out.

There is a common thread running through all of your responses. Lawyer screws up, you ride in an save the day. Very honorable. Very noble.

Here's the bottom line. All of the responses that you have received were merely pointing out possibilities and problems that you might and likely will encounter. Negative, not really. Realistic, definitely. What you need to do is stop trying to convince the volunteers here on the board and load up your trusty steed and head off to battle.

For the record, I am a dog lover and have rescued several over the years for various reasons. The main reason is that I hated the thought of a dog being put down if I could do anything to prevent it. I commend you for your efforts, but I tend to agree that your goal may not be entirely attainable. I hope that you prevail.

"Never argue with stupid people, they will drag you down to their level and then beat you with experience." - Mark Twain

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